Overview of the Reasonable Accommodation Process

1. Overview of the Reasonable Accommodation Process

2. Reasonable Accommodations is Available and used in ALL Staffs, Areas, Functions, and for ALL Employees Case History: The FSIS Reasonable Accommodation Advisor uses Dragon Dictate Voice Activated Software to talk to the computer and it types the spoken words onto the computer screen (used for creation of this PowerPoint Presentation).

3. Objectives • Give brief overview of legal background • Review pertinent definitions • Discuss reasonable accommodations • Process • Types • Provide resources

4. Applicable Laws and RA History • The following disability laws prohibit discrimination and require Reasonable Accommodations (RA): • Rehabilitation Act of 1973, as amended; • Americans with Disabilities Act (ADA); • ADA Amendments Act of 2008 (ADAAA) (effective 1/1/09).

5. Departmental Regulations • USDA Departmental Regulation 4300-008 requires Reasonable Accommodation • USDA Departmental Manual 4300-002 relates the Reasonable Accommodations Request Procedures

6. FSIS Directives and Operating Procedures • FSIS Directive 4306.2, Reasonable Accommodation Accessibility for People with Disabilities • Reasonable Accommodation operating procedures entitled: “ Reasonable Accommodation Is Necessary”

7. Person with a Disability • A person who, without regard to ameliorating effects of mitigating measures: • Has a physical or intellectual impairment that substantially limits one or more of the major life activities, or • Has a record of such an impairment, or • Is regarded as having such an impairment • Note: Only the first two parts qualify for reasonable accommodation

8. Person with a Disability • Walking, standing, seeing, hearing, breathing, talking, caring for oneself, learning, thinking, lifting, sleeping, reproduction, reading, bending, communicating, and major bodily functions. • Past mental illness, diabetes, epilepsy. • Thought of as, visual signs and scars, HIV status.

9. Interpretation of Definition of “Disability” Changes Provides illustrative list of major life activities that includes for the first time “major bodily functions” Mitigating measures (other than ordinary eyeglasses or contact lenses) cannot be considered in determining “disability” Impairment can be a disability even if episodic or in remission “Regarded as” definition expanded

10. Major Life Activities and Functions • Contains some activities that EEOC now specifically recognized, such as bending, reading, and communicating • Major bodily functions include functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions • List of major life activities is not exhaustive

11. Mitigating Measures • Medication, medical supplies, equipment, or appliances, low-vision devices, prosthetics (including limbs and devices), hearing aids and cochlear implants or other implantable hearing devices, mobility devices, oxygen therapy equipment and supplies • Use of assistive technology • Reasonable accommodations or auxiliary aids or services • Learned behavioral or adaptive neurological modifications (monocular vision, learning disabilities).

12. “Ordinary Eye Glasses or Contact Lenses” • “Shall” take these into account in determining “disability” • Definition: “lenses that are intended to fully correct visual acuity or eliminate refractive error” • Distinguished from the mitigating measure of “low vision devices” which are defined as “devices that magnify, enhance, or otherwise augment a visual image”

13. “Regarded As” Disabled • Covers anyone subjected to an action “prohibited by this Act” because of an actual or perceived physical or mental impairment • No requirement that employer perceive impairment to be limiting • “Regarded as” would exclude impairments that are transitory (three months or less) and minor • Individuals “regarded as” disabled not entitled to reasonable accommodation

14. “Regarded As” Disabled • If employer makes employment decision (e.g., hiring, demotion, promotion, discipline, annual evaluation, compensation, termination) based on individual’s actual or perceived impairment, employer has regarded individual as having a disability and must defend its actions

15. A Qualified Individual with a Disability • An individual who, with or without reasonable accommodation, can perform the essential functions of his or her position • Satisfies skills, education, experience, other job requirements (otherwise qualified for the job)

16. Disability Definitions • A “Reported Disability” is any disability “reported” to the Agency (SF Form 256) • A “Targeted Disability” is a disability identified by EEOC as severe. • Targeted Disabilities usually qualify for Reasonable Accommodations. • Reported disabilities may or may not qualify for Reasonable Accommodations.

17. Targeted Disabilities • Include (but not limited to) • Deafness • Blindness • Missing extremities • Partial & Complete Paralysis • Convulsive Disorders • Mental Disabilities / Intellectual Disabilities • Mental Illness • Distortion of Limbs and/or Spine

18. Hidden Disability Include (but not limited to): • Learning disabilities • Diabetes • AADD/ADHD • Convulsive Disorders • Mental Disabilities/Intellectual Disabilities • Mental Illness • Pulmonary or cardiac disorders

19. Reasonable Accommodation • Any change or adjustment to a job, application process or work environment that will permit a qualified applicant/employee with a disability to do the job, as well as enjoy equal benefits and privileges of employment

20. Possible Examples of Reasonable Accommodations • Making existing facilities accessible • Job restructuring • Part-time or modified work schedules • Acquiring or modifying equipment • Changing tests, training materials, or policies • Providing qualified readers or interpreters • Reassignment to a vacant position • Accessible restaurant for retirement party

21. Differences between Reasonable Accommodation and Accessibility

22. Reasonable Accommodation Process • The Reasonable Accommodation regulations require that supervisors and employees with disabilities enter into an interactive process • Supervisors are NOT to make assumptions about what an individual with a disability may or may not need in their work environment • A union official may represent an employee as a personal representative only

23. Employee’s Responsibility An employee: • Must notify agency that an accommodation is needed (written or oral) or employees’ friend, coworker, spouse, or supervisor; and • May need to provide medical documentation of need for a particular accommodation, when appropriate (as with a hidden disability) as requested by the DEPC, Human Resource Operations, Minneapolis • If the employee refuses an equally effective reasonable accommodation during the interactive process, the employer is no longer obligated to offer another. However, the process must be interactive and must attempt to reach an agreed upon solution.

24. Supervisor’s Responsibility Supervisor’s must: • Consult with employee or applicant regarding nature and purpose of request as part of the interactive process • Seek advice from the District and/or the Disability Employment Program Coordinator (DEPC) in Human Resource Operations Division (HROD), Minneapolis • Respond to request and forward it to the District and/ or the DEPC in Human Resource Operations, Minneapolis, within 5 business days of receipt of request

25. Agency’s Responsibility The Agency must: • Provide Reasonable Accommodations for all known disabilities of qualified persons • Ensure accommodation is effective • Provide accommodation for all aspects of employment • Notify applicants or employees that accommodations are available • Can Require documentation that a particular accommodation is necessary, and • Process and provide Reasonable Accommodation within 30 business days

26. Confidentiality • Handle the situation with sensitivity and respect as all RA is confidential • Do not discuss the medical condition of any employee or applicant and open meetings, or during casual conversations • Medical documentation will be placed in a separate locked Reasonable Accommodation file, not in the employees OPF • Supervisors will not maintain medical files, except for safety reasons (e.g., first aid, direct threat situations)

27. Limitations on Reasonable Accommodations • FSIS is not required to provide Reasonable Accommodation if: • It would cause an undue hardship or change of business necessity on Agency (cost is not considered an undue hardship); or • It would pose a direct threat to the health or safety of the employee or others in the workplace

28. Re-assignment • Accommodation of last resort • Considered when no other accommodation allows employee to perform essential functions • Must consider all vacant positions at same grade or lower (60 days before and after advertisement) • Must be qualified for position either with or without an accommodation, or • If no other position or accommodation can be found, the only other options are: disability retirement , resignation, or termination

29. Recommendations • All Reasonable Accommodations Requests should be referred to the District and/or the DEPC, HROD in Minneapolis, MN • All employees should complete the USDA Reasonable Accommodations Training, available in AgLearn, again this year • The Reasonable Accommodation Advisor, Tom Valluzzi, is available to provide advice

30. Resources • USDA Target Center 202-720-2600; www.usda.gov./oo/target • Job Accommodation Network: www.jan.wvu.edu • Disability Employment Program Coordinator in HROD in Minneapolis, MN. • Agency Reasonable Accommodation Advisor (RAA) in Washington, DC.

31. Number of New FSIS RA Cases by FY Year FY 2008 28 FY 2009 49 FY 2010 73 FY 2011 133 FY 2012 180 FY 2013 161

32. Challenges: Personal Attitudes Computer Hardware and Software Ergonomics Physical Environment

33. Contacts for Reasonable Accommodation Requests • Joseph Abbott, Director, Office of Human Resources, Washington, DC (202) 205-0699; Joseph.Abbott@fsis.usda.gov • FSIS District Offices